Korwin v. People

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 ANTHONY ROBERT KORWIN, Case No.: 20cv2345 GPC (BGS) 12 Petitioner, ORDER: 13 v. (1) DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO 14 PEOPLE, AMEND; 15 Respondents. (2) NOTIFYING PETITIONER OF [16] OPTIONS [17] 18 On December 1, 2020, Petitioner, proceeding pro se, filed a petition for writ of 19 habeas corpus under 28 U.S.C. § 2254 . Petitioner has paid the $5.00 filing fee. 20 FAILURE TO NAME A PROPER RESPONDENT 21 Review of the Petition reveals that Petitioner has failed to name a proper 22 respondent. On federal habeas, a state prisoner must name the state officer having 23 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 24 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 25 when a habeas petition fails to name a proper respondent. See id. 26 The warden is the typical respondent. However, “the rules following section 2254 27 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 28 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 1 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 2 advisory committee’s note). If “a petitioner is in custody due to the state action he is 3 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 4 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 5 foll. § 2254 advisory committee’s note). However, if a “petitioner is on probation or 6 parole, he may name his probation or parole officer ‘and the official in charge of the 7 parole or probation agency, or the state correctional agency, as appropriate.’” Id. 8 (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s note). 9 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 10 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 11 in custody. The actual person who is [the] custodian [of the petitioner] must be the 12 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 13 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 14 person who will produce “the body” if directed to do so by the Court. In order for this 15 Court to entertain a Petition for Writ of Habeas Corpus, Petitioner must name the person 16 who will produce “the body” if directed to do so by the Court. Because Petitioner is on 17 parole, proper respondents are his parole officer and the official in charge of the parole 18 agency. See Ortiz-Sandoval, 81 F.3d at 894 . In California, the Director of the 19 Department of Corrections is the official in charge of the parole agency. See In re 20 Lusero, 4 Cal. App. 4th 572, 576 (1992) (“During the period of parole following 21 incarceration, an inmate continues in the custody of the department.”). Petitioner has not 22 named his parole agent or the Secretary of the California Department of Corrections and 23 Rehabilitation. 24 FAILURE TO ALLEGE EXHAUSTION AS TO ALL CLAIMS 25 The exhaustion requirement is satisfied by providing the state courts with a “fair 26 opportunity” to rule on Petitioner’s constitutional claims. Anderson v. Harless, 459 U.S. 27 4, 6 (1982). In most instances, a claim is exhausted once it is presented to a state’s 28 highest court, either on direct appeal or through state collateral proceedings. See 1 Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir. 2002). The constitutional claim raised 2 in the federal proceedings must be the same as that raised in the state proceedings. See [3] id. Here, Petitioner has indicated in his Petition that while claim one is exhausted, claims 4 one, two and three have not been presented to the California Supreme Court and those 5 claims appear to be unexhausted. Thus, the Petition contains both exhausted and 6 unexhausted claims and is considered “mixed.” (See Pet., ECF No. 1 at 7-9.) In order 7 for the Court to entertain the Petition, Petitioner must choose one of the following 8 options: 9 i) First Option: Demonstrate Exhaustion 10 Petitioner may file further papers with this Court to demonstrate that he has in fact 11 exhausted the claims the Court has determined are likely unexhausted. If Petitioner 12 chooses this option, his papers are due no later than February 8, 2021. Respondent 13 may file a reply by March 8, 2021. 14 ii) Second Option: Voluntarily Dismiss the Petition 15 Petitioner may move to voluntarily dismiss his entire federal petition and return to 16 state court to exhaust his unexhausted claims. Petitioner may then file a new federal 17 petition containing only exhausted claims. See Rose v. Lundy, 455 U.S. 509, 510 , 520-21 18 (stating that a petitioner who files a mixed petition may dismiss his petition to “return[] to 19 state court to exhaust his claims”). If Petitioner chooses this second option, he must file a 20 pleading indicating his intention with this Court no later than February 8, 2021. 21 Respondent may file a reply by March 8, 2021. 22 Petitioner is cautioned that any new federal petition must be filed before expiration 23 of the one-year statute of limitations. Ordinarily, a petitioner has one year from when his 24 conviction became final to file his federal petition, unless he can show that statutory or 25 equitable “tolling” applies. Duncan v. Walker, 533 U.S. 167 , 176 (2001); 28 U.S.C. 26 § 2244(d). The statute of limitations does not run while a properly filed state habeas 27 corpus petition is pending. 28 U.S.C. § 2244 (d)(2); see Nino v. Galaza, 183 F.3d 1003 , 28 1006 (9th Cir. 1999). But see Artuz v. Bennett, 531 U.S. 4, 8 (2000) (holding that “an 1 application is ‘properly filed’ when its delivery and acceptance [by the appropriate court 2 officer for placement into the record] are in compliance with the applicable laws and 3 rules governing filings.”); Bonner v. Carey, 425 F.3d 1145, 1149 (9th Cir. 2005) (holding 4 that a state application for post-conviction relief which is ultimately dismissed as 5 untimely was neither “properly filed” nor “pending” while it was under consideration by 6 the state court, and therefore does not toll the statute of limitations), as amended 439 F.3d 7 993 . However, absent some other basis for tolling, the statute of limitations continues to 8 run while a federal habeas petition is pending. Duncan, 533 U.S. at 181-82. 9 iii) Third Option: Formally Abandon Unexhausted Claims 10 Petitioner may formally abandon his unexhausted claims and proceed with his 11 exhausted ones. See Rose, 455 U.S. at 510, 520-21 (stating that a petitioner who files a 12 mixed petition may “resubmit[] the habeas petition to present only exhausted claims”). If 13 Petitioner chooses this third option, he must file a pleading indicating his intention with 14 this Court no later than February 8, 2021. Respondent may file a reply by March 8, 15 2021. 16 Petitioner is cautioned that once he abandons his unexhausted claims, he may lose 17 the ability to ever raise it/them in federal court. See Slack v. McDaniel, 529 U.S. 473 , 18 488 (2000) (stating that a court’s ruling on the merits of claims presented in a first § 2254 19 petition renders any later petition successive); see also 28 U.S.C. § 2244 (a)-(b). 20 iv) Fourth Option: File a Motion to Stay the Federal Proceedings 21 Petitioner may file a motion to stay this federal proceeding while he returns to state 22 court to exhaust his unexhausted claim(s). Rhines v. Webber, 544 U.S. 269 (2005); 23 Jackson v. Roe, 425 F.3d 654 (9th Cir. Sept. 23, 2005). Petitioner is notified that in order 24 for the Court to grant a stay and abeyance, he must demonstrate there are arguably 25 meritorious claims which he wishes to return to state court to exhaust, that he is diligently 26 pursuing his state court remedies with respect to those claims, and that good cause exists 27 for his failure to timely exhaust his state court remedies. Rhines, 544 U.S. at 277-78 . If [28] 1 || Petitioner chooses this fourth option, he must file a pleading with this Court no later 2 || than February 8, 2021. Respondent may file a reply by March 8, 2021. 3 CONCLUSION 4 The Petition is DISMISSED without prejudice and with leave to amend because 5 || Petitioner has failed to name a proper Respondent. In addition, the Court NOTIFIES 6 || Petitioner that he has filed a Petition that contains both exhausted and unexhausted 7 ||claims. Accordingly, if Petitioner wishes to proceed with this case he must, no later 8 February 8, 2021, (1) file a First Amended Petition that names a proper 9 || Respondent and alleges exhaustion as to all claims in the Petition; OR (2) file a First 10 || Amended Petition that names a proper Respondent and choose one of the options 11 || outlined above. 12 If Petitioner fails to respond to this Order, the case will remain dismissed. 13 IT IS SO ORDERED. 14 || Dated: December 3, 2020 <= 16 United States District Judge